As using sounds produced on unusual 8-bit systems and game consoles grows in popularity, some artists are appropriating the music as their own. Sometimes, as with Beck, a well-known or better-marketed artist is using lesser-known artists for purposes of novelty. That alone has riled some in the hard-core chiptune community. In some cases, though, artists are resorting to outright theft. In the most recent case, part of the problem is people misunderstanding Creative Commons licenses, even though those licenses are designed to encourage sharing.

Is Creative Commons a safe license to use, or does it encourage this kind of theft? I think CC is actually a solution, not part of the problem – and this illustrates that.

Not Just Timbaland: Fitts for Fights Syndrome

Online music piracy is well known. But ready access to music online has led to a much more serious problem: digital plagiarism.

The best known case, of course, is the infamous 2007 Timbaland Controversy, in which Timbaland apparently stole musical elements from Finnish demoscene artist Tempest in the song Do It by Nelly Furtado. (See EM411 story, Wikipedia article.) But Timbaland isn’t alone.

At least Timbaland was using a sample; some artists steal whole songs outright. The notorious Norwegian duo Fitts for Fights performed entire sets stolen from demoscene/"microscene" recordings — and kept playing the stolen tunes live.

In April of this year, Laromlab released an entire album — every last track — stolen from other recordings. After CMJ reported the story, widely discussed on chip community 8-bit collective, the "artist" was forced to admit the entire album was a "hoax." (Thanks, Peter Swimm, for the tip.)

In fact, the track record here demonstrates that, for all Timbaland’s press as the most famous figure involved, micromusical plagiarism is rampant. It’s not just geeks getting defensive; there’s something to this, fueled by the novelty and apparent obscurity of the music. (See also: an ongoing thread on Pouet.net.)

Crystal Castles and Creative Commons

The latest episode combines 8-bit musical plagiarism with an abuse of Creative Commons licenses. Crystal Castles is a Toronto-based band that’s gotten quite a lot of positive press for their use of 8-bit sounds, including a keyboard with an Atari chip. (And there’s the source of the problem: this stuff is "hot" partly because it’s novel to mainstream press.)

Unfortunately, some of Crystal Castles’ sound apparently isn’t their their own.

It seems Warner exec Jim Griffin was unprepared for the rancor of the Interwebs, because he’s backpedaling on a proposal to create a blanket fee for ISPs on music. All of that was just part of a “dynamic conversation,” says Griffin in a statement, and “It would be unfortunate if a creative and fruitful dialogue were sidetracked by a rush to judgment about what was simply my own illustrative example of one of many concepts I have in this space.”

Yes, indeed — it’d be unfortunate if a discussion of a hair-brained scheme with no plan for implementation or investment from any of the stakeholders were derailed by the fact that it was a hair-brained scheme with no plan for implementation or investment from any of the stakeholders.

See some excellent coverage and analysis from CNet News.com’s Greg Sandoval.

And as Sandoval notes, “What happens is that people hear the word “tax” and objective analysis goes out the window. People condemn and vilify. Out comes the torches and pitchforks.” That lack of objectivity is what frustrated me yesterday, even without being a specialist on the legal details

Of course, I disagree with Griffin about what happens to the “dynamic conversation” when people bring out the pitchforks. He says people lose the opportunity to “consider a variety of raw concepts without prejudice.” I say they lose the opportunity to consider just how out of touch with reality his proposal is.

I’ll never fully understand technology bloggers when it comes to music policy. Here’s an obviously stupid idea: Warner Brothers, the label, comes up with a scheme to add a surcharge to ISP bills to allow, supposedly, “legal” use of music file sharing services. Stupid, yes.

Here’s the response from Michael Arrington (Techcrunch): “It’s clearly good for the music labels, who are facing their imminent extinction.” He claims that this is the plan the “labels” (actually one label) don’t want you to know (except that they’re sitting down for long interviews with Conde Nast Portfolio).

Gizmodo’s Matt Buchanan just regurgitates and further oversimplifies Arrington’s argument, and adds a picture of a kitten at gunpoint, concluding: “And as Arrington points out, it would basically freeze innovation in the industry, meaning labels would be able to ream them that much harder. Not to mention, thanks to the fine print, we’d probably no longer own our music. But that’s the whole point.”

Apparently, “imminent extinction” means multi-billion dollar industry. (In fairness, the industry often — inexplicably — argues the same thing. I wish I were part of an “extinct” multi-billion dollar industry.) And apparently you can’t even talk about the issue of how music will be distributed and paid for without focusing on the desire of said industry to destroy your life and the fact that it’s still completely doomed.

And we’ve already seen Arringtonisms like recordings are worth nothing, and musicians should really owe websites cash for promotion (the Web 2.0 Payola plan, evidently).

But what happened to the obviously stupid idea? I agree with these sites that the plan is bad — I just think, ironically, it’s bad for even more reasons than they think. I’m not actually sure anyone read the original source — I think they were too busy being enraged, or looking for appropriate kitty pictures:

Fee for All: Jim Griffin will lead Warner Music’s fight to tame the Web’s lawless music frontier.

Forget about artists. Forget about copyright holders. Screw the musicians. This is ridiculously stupid even for the labels, partly because they’re unlikely to agree on the idea — meaning the idea is extinct on arrival. “Freeze innovation”? I guess — if the labels actually pursue this. But the blogosphere has become so rabidly anti-label, it’s fighting them instead of pointing out the planet-sized holes in the logic we’re being fed:

PC games — and even Windows customization utilities — make up a much larger market than music software. But in this parallel universe there have been echoes of the challenges facing music developers since the early days of PCs. Both have highly dedicated, niche audiences. Both face rampant piracy. Neither has the support of big business sales as the likes of Adobe and Microsoft do. Many of the customers use the products in their free time, rather than as tools that generate revenue. (Sorry, but it’s true.) Both have, let’s face it, customer bases who often don’t have that much money to spend, period — particularly after a hefty hardware investment.

And both gamers and musicians have been the target of aggressive anti-piracy campaigns, campaigns that get to the heart of the debate over software DRM, and very often blame pirates for failing business models.

Stardock, a “boutique” developer with a rabid following of sci-fi strategy gamers, finally spoke out. And they had good reason: a game with absolutely no DRM made it to one of the top three spots in the country.

Piracy & PC Gaming

There are real lessons for the potential of future music software development, not only in terms of piracy, but in terms of building future businesses.

Suffice to say, we at CDM discourage pirating music. I should hasten to add, though, that we’re also generally opposed to terrorism, illegal firearms, and narcotics — just in case there’s any doubt. According to a training film produced by the National District Attorneys Association and Recording Industry Association of America, and leaked on the Interwebs (doh!), these things typically go hand in hand.

In the course of the film, the producers do stumble upon an interesting solution to the issue of sagging sales of physical CDs:

“There are some sayings in certain parts of the jurisdiction when you buy a CD, ‘would you like it with or without’,” Walters adds. “The ‘with’ is a CD enclosing a piece of crack or whatever the case may be. We, continually, in working with law enforcement, find that these locations have everything from handguns to large quantities of narcotics.”

Discussions about music distribution, sales, and piracy often return to that time-worn theme of “supporting artists.” Of course, what usually gets left out is what actually supports the artists. Sure, it’s lovely that the industry likes this theme — maybe you imagine an ingenious, talented songwriter lighting candles in her studio — and she’s super cute, too. And you’re stealing money from her. Or worse, you’re actually ripping the livelihood from a toothless guy with his guitar, who sleeps in the mud in rainstorms. (I’m only half joking … fair number of musicians who do actually fit just that description.) But, is the money even getting to them?

Well, artists/writers are increasingly taking matters into their own hands. Why not get that album up on the tracker sites, and be upfront with your listeners about how to have a real relationship that actually gets money directly from listener to audience, without getting hung up on the middleman? The idea’s anything but new, but it is gathering momentum.

This story from Releaselog exaggerates a little with the headline:

The Flashbulb Promotes Piracy

… in fact, the artist in question would still appreciate getting some funding; he (Benn Jordan) just argues that you should pay what you think is appropriate to the artist directly, not Apple, Amazon, or Best Buy. He also happens to be CEO of his label, Alphabasic Records, and wants the same treatment for all of them.

Oh, yeah, and The Flashbulb isn’t “pro-piracy” so much as he is anti-CD (as purchased from big retailers) and anti-iTunes — good reason, seeing as he’s not getting paid.

Short excerpt:

WAVES and PACE defend their anti-piracy hardware protection and respond to allegations of technical difficulties from a blog entry … and why, if this discussion really matters, we should look at it a different way.

At the beginning of the month, we pointed to a blogger who posted what was essentially a rant about why he was fed up with PACE. (PACE is a common anti-piracy developer whose technology is most often deployed as an iLok dongle, but available as software-only protection, as well.) The blog entry began with a series of technical problems, but developed into an argument about why the author felt third-party anti-piracy technology was problematic in general. There’s nothing so unusual about that, or even the fact that he announced he was "boycotting" products that use PACE. I’m sure you’ve heard people gripe about PACE and iLok; I’ve heard just these kinds of rants for years, and the word "boycott" does come up. (Whatever the equivalent of a "watercooler" is for audio — coffee maker? — it’s something you hear, period.) That’s not universal — some people are very loyal to PACE-protected products, and in some cases prefer an iLok to another solution. But complaints are common on the user standpoint; it’s no secret that copy protection in general is not something that users are enthusiastic about.

What made this slightly unusual was that the blogger, Adam Schabtach, works as a developer (for Audio Damage), and that a rant that a few years ago might have been shared with friends wound up on the Web. (The blog entry was NOT an official message from Audio Damage, but it did cause the blog to be received differently than if it had been a random user.) And because I believe in meeting these issues heads-on, I personally helped the story get more attention.

Of course, just as the Web amplifies rants, it also amplifies the responses. You can read some 86 comments in response to Adam, some very well-reasoned, some heated (including those who claim Adam was biased by being a developer). Sure enough, some people stepped up to defend PACE and iLok. Some did not, though there were two separate responses, one frustration with PACE, and the other with WAVES customer support. (I should note, these are not the same issue. Any developer, no matter their intention, can be bitten by unhappy users.)

There was also an official response: I was contacted by PACE Anti-Piracy. PACE had communicated with WAVES, the developer whose products Adam was using. Waves didn’t contact CDM, but PACE relayed this response from them. Specifically, both PACE and WAVES called into question the blue screen that had so frustrated Adam, claiming it had another cause:

The last written correspondence WAVES had with this user was over two years ago. No other mention in their database of correspondence with this user under this name.

In this "article" the user mentions to different scenarios where he has attempted to install/use Waves.

It is difficult for Waves and PACE to comment on the first attempt as there are not enough details for us to diagnose the problem. [PACE agrees - not a lot of info and historically very very few if any Mac issues seen].

A Waves tech rep will not recommend a user to reformat his system unless; they have found a number of symptoms indicating a major problem with the system. This is extremely rare. I can speak for my self, handling thousands of cases by phone and email where I have maybe suggested 1 or 2 users that they need to reformat their system.

[Note: PACE will NEVER recommend such reformatting due to any PACE issue as that is not how issues can be resolved].

The second scenario is not PACE related, this is an issue with Windows DEP (Data Execution Prevention) protocol.

“The installer almost immediately informed me that it had to restart my PC, so I let it. It launched itself automatically after the PC rebooted, started the installation process, and then my good faith and efforts were rewarded with this: (picture)”

There is a very simple fix to overcome this. All of WAVES tech support reps are aware of this issue and are able to resolve this issue within minutes. Period.

End of Waves response.

Since this description and Adam’s didn’t match up, I went back to Adam to find out what he had to say about Waves’ response. He wrote back:

Updated: A PACE Anti-Piracy official has officially requested that we remove an image of the iLok product. While they asked not to be publicly quoted, they have challenged the technical accuracy of Adam’s blog post, saying they don’t believe their product caused the Blue Screen of Death. If PACE chooses to release an official reply, we will share it.

The debate over copy protection in music software and anti-piracy tactics continues to heat up. Now Adam Schabtach of Audio Damage, the popular plug-in developer, has fired off a call for a boycott of products that use PACE and the iLok hardware dongle. And that means that Waves is again a target, in this case because Adam himself had technical difficulties resulting from the copy protection scheme. But here’s his argument: the problem isn’t copy protection per se, it’s that developers have to cede control to a third party when the technology breaks.

This points up the biggest problem with PACE: if something goes really wrong, the maker of the PACE-wrapped product can’t help you. They didn’t invent PACE, they can’t fix bugs in PACE, they often don’t even know enough about PACE to troubleshoot it (which is not so much a reflection of their ignorance but of the sheer arcane complexity of PACE and the amount of information about it which its makers do not release even to their customers). Their only recourse is to tell you to wipe your hard drive bare and start again. This is one of many reasons that Audio Damage doesn’t use PACE: we want to help our customers make music, and we don’t want to be in a position in which we have to say “sorry, can’t help you” if something goes wrong with one of our products. Of course, unlike Audio Damage, Waves doesn’t offer a money-back guarantee for their products, so in the end I was stuck with software I’d paid for but couldn’t use.

Adam just doesn’t like copy protection, right? Well, no, in fact. The issue is that while PACE fails to stop piracy (something admitted by Waves themselves as they sue studios around the world for millions of dollars), PACE did succeed in stopping Adam from using his software:

I went to the Waves website, logged in to my account, downloaded the latest installer, and retrieved my iLok from the shelf upon which it was gathering dust. I backed up my hard drive (”once bitten, twice shy” and I’ve been bitten way more than once by PACE), launched the installer, and held my breath. The installer almost immediately informed me that it had to restart my PC, so I let it. It launched itself automatically after the PC rebooted, started the installation process, and then my good faith and efforts were rewarded with [a Windows Blue Screen of Death].

… A PC running Windows puts this up when something goes really, really wrong and the OS makes the unilateral decision to bring all proceedings to a halt in order to prevent further mishap. Seeing this screen is the computer equivalent of seeing your car deploy its airbags.

The final analysis:

PACE doesn’t stop piracy; any copy-protection system can, and will be, defeated. What PACE does do is prevent legitimate users of software products from using products which they’ve paid for.

Why I Boycott Products That Use PACE/iLok (and Why You Should, Too)

PACE/iLok is the leading provider of this kind of copy protection, so I expect we may hear a response. If I can get a statement from them, I’ll post that soon. But I will say, Adam is not alone in his frustration. Developers will continue to make the choices they feel are right for their business, which is their prerogative — but it’s likewise the choice of their customers to vote with their wallets. I do know users who are perfectly comfortable with iLok. Let us know how you feel, and whether copy protection has influenced your purchasing decisions.

Updated: Note that we’re talking about two different kinds of copy protection offered by PACE. One is the PACE software protection, which does not use a hardware dongle (or “hardware key” as PACE prefers to call it). The other is the iLok.

Already, readers are split: we’ve got Max/MSP users (myself included) who haven’t had problems with PACE software protection, and even some iLok hardware users who haven’t been bothered. But there are some strong arguments against the hardware dongles, to the point of cutting into sales, something developers may want to watch closely. Keep the feedback coming.

BanPiracy.org is a independent organization pursuing “copyright enforcement” for pirated software, targeting studios with sting operations and lawsuits. Recently, I challenged them to demonstrate that they have other developers onboard aside from Waves Audio. That seems reasonable, given their website claims they have been contracted by “many of the biggest names in the industry” and that they’re the “leading rights advocate for the audio software and digital content industry.”

Ross Johnson of PR firm Strick and Company contacted me this week to say BanPiracy had responded to my challenge and, presumably, various criticisms these tactics have attracted. (Paris Hilton and Halliburton have turned to his firm, which is known for defending companies in crisis.) Ross writes:

“As a big fan of the lively discussions on your user forums relating to BanPiracy, I have encouraged my client to respond to your challenge recently posted.”

The response is titled “BanPiracy Says Thanks to the Brave Ones on Its Anniversary!” and was sent to various media outlets. Now, I’m likewise a fan of lively debate, so I want to thank Ross for encouraging BanPiracy to join the discussion.

But the answer to my challenge, evidently, is no, they can’t demonstrate that they have any other developers onboard. They even acknowledge that the fact that they’re a for-profit endeavor might “be a tough sell.” They manage to copy and paste supportive comments from a trade group and an anti-piracy manufacturer, but take those quotes out of context (including, bizarrely, a comment left here on CDM by one of our own contributors — he has a few, ahem, words for BanPiracy in comments now that they’ve distorted what he said).

Here’s the full response, penned by Tomer Elbaz and Michael T. David, COO and CEO respectively. I’ll say this: couched in epic battle terminology, it isn’t PR speak:

We asked to hear from some actual studios targeted by plug-in maker Waves’ anti-piracy police (aka “banpiracy.com”). Here’s one report from Nick Buxton, via comments:

I haven’t read all the comments but wanted to add our experience; all our recording software is legal, we use uad plugs but wanted to see how waves worked; couldn’t get a demo version, so tried out a “copy” on personal projects; decided what we already had was better so decided not to buy; but didn’t erase the “copy”; stupid; now maybe we were denounced, although since we didn’t use it on any commercial projects, this is not likely; whoever is behind this, got a court order by claiming that we advertised wavelab on our website, which was true, and that wavelab belonged to Waves, which is not; result, visit from a court officer, examination of our computer, legal proceedings; now we could fight this; false information for a court order, no proof we used the software, we are a tiny company; etc etc… but this costs legal fees, time, stress; so we are considering taking up the offered “solution”, ie buy the plugs, probably have to pay some legal fees, but end of story; i am making no excuses; we were wrong; but this does not seem to me the best way to sell your product